Thursday, November 14, 2013

Rights and Rites in Medieval English Law

[We are very grateful to Ryan Greenwood, the 2013/14 Rare Book Fellow at the Lilllian Goldman Law Library, Yale Law School, for this report on a session at the recently concluded ASLH meeting.]

One of the excellent, though somewhat lower-profile sessions at the recent conference of the American Society for Legal History was “Rights and Rites in Medieval English Law,” which drew together promising new work in medieval English legal history.

Thomas McSweeney, College of William and Mary, presented "The King's Courts and the King's Soul: Pardoning as Almsgiving in Medieval England," a thirteenth-century case study involving a wealthy widow's amercement, or fine, and subsequent royal pardon. McSweeney offered a compelling argument that the widow Sibilla was pardoned because of her role in a familiar set piece of the medieval moral economy: the act of giving alms to the poor (pauperes), and the corresponding spiritual benefits which accrued to the giver for doing so. The material beneficiary, blighted by poverty on earth but preferred spiritually to the rich, would in return for alms pray for the soul of the wealthy donor, if not also the heirs. Pardons of this kind from monarchs were not uncommon, McSweeney argued; and although Sibilla was rich, as a widow she was classed on a Biblical typology among the powerless, and so was a candidate for King Henry's alms and pardon. A key legal question was why royal justices would yield to the king's personal interests and grant pardons as alms, during a period in which justices began to recognize a first allegiance to the law, as an impersonal body of rules, rather than to the personal lawgiving capacities or prerogatives of their monarch. In closing, McSweeney indicated that Sibilla's case may show some of the complexity of royal justice during a long period of transition.

Joshua Tate, Southern Methodist University, gave his paper, "Episcopal Power and Royal Jurisdiction in Angevin England," which tied in well with another aspect of royal justice in a complex and tumultuous period. Tate presented entries in a bishop's register as evidence of King John's broad intervention in cases of patrons' rights to present candidates for ecclesiastical benefices. Bishops, although they had ample backing in canon law and the procedural rules to claim authority in disputes over patrons' rights, largely capitulated to John's efforts to enforce royal prerogative in judging the disputes, and saw the king intervene actively and to some extent personally in them. In the diocese of Lincoln, Tate noted a drop in cases involving patronage disputes by the end of John's reign, and increased ambiguity over whether the bishop had made an inquisition of the candidate, and to whom the advowson, or right of presentation, belonged. Tate's evidence was consistent with the thesis that some bishops had ceded powers to John in this regard, and to new mechanisms of royal justice. Lincoln was also a particularly good case study, since a creature of John, Hugh of Wells, had been installed there as bishop, succeeding a saintly predecessor more disposed to uphold ecclesiastical rights and procedure.

Ryan Rowberry, Georgia State University, in "Purging Pluralist Judges in the King's Courts: Dissemination and Enforcement of Pope John XXII's Execrabilis (1317) in England," gave an interesting account of a key shift in medieval English legal history. Like Tate, Rowberry threw into relief new legislation and practice that led to changes in the administration of English law, here in the fourteenth century. Rowberry explained why royal justices may have in part transitioned, in the first quarter of the fourteenth century, from clerics to laymen, arguing that the reform-minded Pope John XXII's 1317 decree, Execrabilis, helped motivate the change. The decree forbade the holding of a plurality of benefices, a common practice which gave the absentee holder the revenue of each of a series of church properties. Rowberry offered the careers of two wealthy royal justices, who resigned at least some of their benefices after 1317, as evidence: though their religious and secular patrons continued to support them, and were surely interested to see them in influential judicial positions, the surrender of some benefices may well reflect the impact of Execrabilis relatively quickly after its promulgation, and may have contributed to the exit of clerical judges from royal courts.

Charles Donohue, Jr., Harvard University, offered comment and critique focusing on the details of the evidence and recommended, in a typical plea among medievalists, that wider examination of the historical sources might be useful before any broad conclusions should be drawn. He suggested that Sibilla may have been pardoned because an earlier settlement of her case was botched through no fault of her own, and that the differences in the register of Hugh of Wells might be explained by the different scribes as much as the politics surrounding the entry of new candidates for office. In response to Rowberry's paper, he noted that clerics could still receive pensions as justices, and that the decisive moment in a longer period of transition between clerical and lay justices may have been the 1340s. But these possibilities were open to further consideration as well, and Donohue played devil's advocate to papers whose merits he happily conceded, particularly for the value of their new approaches, and the headway they made on important issues.

Sara McDougall, CUNY/John Jay College of Criminal Justice, chaired the panel and generously guided a very good, thought-provoking discussion.